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3 All] Ram Narayan and others V. State of U.P. and another 735
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.09.2009
BEFORE
THE HONBLE VIJAY KUMAR VERMA, J.
Criminal Misc. Application No. 14284 of
2009
Ram Narayan and others ApplicantsVersus
State of U.P. and anotherOpposite Parties
Counsel for the Petitioners:Sri P.K. Dubey
Counsel for the Respondent:Govt. Advocate
Code of Criminal Procedure Section 155(2)-Direction for investigation in N.C.R.Case-on application of third person-held-maintainable-order passed by Magistrateas well as the Revisional Court-requiresno interference.
Held: Para 7
In my opinion, such permission can begranted by the Magistrate on the basis ofthe application moved by thecomplainant or any other aggrievedperson.
Case law discussed:2007 (57) ACC 331
(Delivered by Hon'ble Vijay Kumar Verma, J.)
1. "Whether permission under
section 155 (2) of the Code of Criminal
Procedure (in short 'the Cr.P.C.') to
investigate the case can be granted by the
magistrate on the basis of the application
of complainant or other aggrieved
person", is the main legal question that
falls for consideration in this proceedingunder section 482 Cr.P.C. by means of
which prayer to quash the order dated
04.12.20097 passed by Judicial
Magistrate/ Additional Civil Judge (Jr.
Div.) Tilhar, Shahjahanpur, in Crl. Case
No. 154 of 2007, arising out of NCR No.
114 of 2006, under sections 323, 504 IPC,
P.S. Madanapur, District Shahjahanpur as
well as order dated 03.06.2009 passed byAdditional Session Judge/ Spl. Judge
(E.C. Act), Shahjahanpur, in Crl. Revision
No. 29 of 2009 (Ram Narayan & others
vs. State of U.P. & another), have been
made.
2. Heard Sri P.K. Dubey, learned
counsel for the applicant and A.G.A. for
the State
3. From the record, it transpires that
NCR No. 114 of 2006, under sections,323, 504 IPC was registered on the basis
of the report made by Deena Nath, s/o
Dharam (O.P. No. 2 herein) at P.S.
Madanapur, District Shahjahanpur. The
complainant Deena Nath moved an
application before the Judicial Magistrate/
Additional Civil Judge (Jr. Div.) Tilhar,
District Shahjahanpur, under section 155
(2) Cr.P.C. for granting permission to
investigate the case. The learned
magistrate, vide impugned order dated
04.12.2007 allowed that application anddirection was issued to S.O. P.S.
Madanapur to investigate the case after
converting the same in proper sections.
Order dated 04.12.2007 was challenged
by the applicant-accused in the court of
Sessions Judge Shahjahanpur by means of
Crl. Revision No. 29 of 2008, which was
decided by Additional Sessions Judge/
Spl. Judge (E.C. Act), vide impugned
order dated 03.06.2009, whereby the
revision has been dismissed. Both these
orders have been challenged by the
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736 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
accused persons by means of this
proceeding under section 482 Cr.P.C.
4. The main submission made by
learned counsel for the applicants is that
the magistrate concerned is not
empowered to grant permission to
investigate a non-cognizable case on thebasis of the application moved by third
person or complainant and such
permission can be granted only on the
report of police officer of the police
station concerned and since the learned
magistrate in present case has granted
permission to investigate a non-
cognizable case registered at NCR No.
114 of 2006 on the basis of the
application moved by the complainant,
hence the impugned order dated
04.12.2007 being illegal and withoutjurisdiction was liable to be set aside, but
the learned lower revisional court did not
consider the matter in proper perspective
and Revision has been dismissed without
sufficient reasons. The contention of the
learned counsel for the applicants is that
on registration of a non-cognizable case,
permission to investigate can only be
sought by S.O. of P.S. concerned or by
some other police officer authorised by
him and the magistrate is not empowered
to entertain the application under section155 (2) Cr.P.C. moved by the
complainant or any other person.
5. In response, it is submitted by
learned AGA that there is no legal bar for
the magistrate to grant permission under
section 155 (2) Cr.P.C. to investigate a
non-cognizable case on the basis of the
application moved by the complainant or
aggrieved person.
6. I have given my thoughtfulconsideration to the submissions made by
learned counsel for the parties. Section
155 Cr.P.C. reads thus:-
155. Information as to non-cognizable
cases and investigation of such cases.-
(1) When information is given to an
officer in charge of a police station of the
commission within the limits of suchstation of a non-cognizable offence, he
shall enter or cause to be entered the
substance of the information in a book to
be kept by such officer in such form as the
Stte Government may prescribe in this
behalf, an refer the informant to the
Magistrate.
(2) No police officer shall investigate a
non-cognizable case without the order of
a Magistrate having power to try such
case or commit the case for trial.
(3) Any police officer receiving suchorder may exercise the same powers in
respect of the investigation ( except the
power to arrest without warrant) as an
officer in charge of a police station may
exercise in a cognizable case.
(4) Where a case relates to two or more
offences of which at least one is
cognizable, the case shall be deemed to be
a cognizable case, notwithstanding that
the other offences are non-cognizable.
7. Sub section (2) of Section 155Cr.P.C. provides that no police officer
shall investigate a non-cognizable case
without the order of a Magistrate having
power to try such case or commit the case
for trial. Sub section (3) of Section 155
Cr.P.C. provides that any police officer
receiving such order may exercise the
same powers in respect of the
investigation (except the power to arrest
without warrant) as an officer in-charge of
a police station may exercise in a
cognizable case. Sub section (2) ofSection 155 Cr.P.C. does not envisage
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that permission to the police officer to
investigate a non-cognizable case can be
granted on the basis of the report of police
officer only. In my opinion, such
permission can be granted by the
Magistrate on the basis of the application
moved by the complainant or any other
aggrieved person. In this context reliancecan be placed on Kunwar Singh vs. State
of U.P. 2007 (57) ACC 331, in which it is
held by this Court that complainant/ third
party also can move application before the
magistrate for order to direct investigation
in NCR case. In view of the law laid
down by this Court in Kunwar Singh vs.
State (supra), the impugned order dated
04.12.2007 passed by the learned
magistrate concerned as well as the
impugned order dated 03.06.2009 passed
by learned lower revisional court do notrequire any interference by this Court, as
there is no illegality in both these orders.
8. Consequently, the application
under section 482 Cr.P.C. is hereby
rejected.---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.09.2009
BEFORE
THE HONBLE VIJAY KUMAR VERMA, J.
Criminal Misc. Bail Application No. 15803of 2008
Sanjay Applicant (In Jail)Versus
State of U.P. Opposite Party
Counsel for the Applicant:Sri K.K. Tiwari
Sri Indra Mani Tripathi
Counsel for the Opposite Party:A.G.A.
Code of Criminal Procedure-Section-439-Bail Application offence under Section302, 506 IPC applicant set fire afterpouring Kerosene oil by his father-postmortum report shows burn injuries-keeping in view of evidence and materialavailable in case diary-taking life ofinnocent lady-not deserves for bail-claim
of parity or long period of jail ofprisoner-not violative of Art. 21.
Held: Para 12
I have carefully gone through the entirematerial on record. There is sufficientprima facie evidence to show that theapplicant Sanjay had set the deceased onfire after pouring kerosene oil by hisfather. The post-mortem report(annexure 2) shows that the deceasedhad died due to burn injuries. Thereforehaving regard to overall facts and
circumstances of the case and keeping inview the evidence available in the casediary, but without expressing anyopinion about merit of the case, in thisheinous crime of taking the life of aninnocent lady without any lawful excuse,the applicant does not deserve bail.Case law discussed:2009 (66) ACC 189, 2008(68) ACC 115.
(Delivered by Hon'ble Vijay Kumar Verma, J.)
1. Heard Sri Indra Mani Tripathi,
Advocate, appearing for the applicant and
AGA for the State.
2. The allegations made in the FIR
lodged on 05.10.2006 by Arun, son of
Ram Naresh Giri at P.S. Pilkhuwa, district
Ghaziabad at case crime no. 254 of 2006,
under section 302, 506 IPC, in brief, are
that the accused Sanjay had borrowed
Rs.25,00/- from Mithilesh, mother of the
complainant and when she demanded that
money on 04.10.2006, he became angry.
It is also alleged that on next day, i.e.
5.10.2006 at about 4.00 P.M., Sanjay and
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738 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
his father Om Prakash set Smt. Mithlesh
on fire, due to which she died.
3. The main submission made by
learned counsel for the applicant is that
motive as alleged in the FIR is very weak
and for the sake of Rs.25,00/- only, no
person would commit the murder ofinnocent lady.
4. Next submission made by learned
counsel is that if the applicant was having
country made pistol, then he could
commit the murder of deceased by
shooting her.
5. Drawing my attention towards the
site plan paper no. 21, it is submitted by
learned counsel that the incident is said to
have been witnessed by the complainantfrom a distance of 50 mts. only, but he did
not make any effort to save his mother,
and hence on this ground the presence of
the complainant at the time of incident is
doubtful.
6. Further submission made by
learned counsel is that applicant is
resident of other village and story of
committing the murder of deceased is
false and concocted. For this submission
attention of the Court has been drawntowards statement of Ram Naresh Giri,
husband of the deceased also , which has
been filed with listing application dated
05.05.2009.
7. It is also submitted that incident
of burning the deceased is said to have
occurred below the chhappar, but the
chhappar was not burnt, which also
makes the story doubtful.
8. It is also submitted that co-accused Om Prakash has been granted
bail by another Bench of this Court vide
order dated 27.11.2007 passed in
Criminal Misc. Bail Application No. 3540
of 2007 and hence on this ground of the
principle of parity, the applicant is also
entitled to be released on bail, because the
role of pouring kerosene oil was assigned
to the co-accused Om prakash, who hasbeen enlarged on bail.
9. It is also submitted that the
applicant is languishing in jail since
October, 2006 and hence on the basis of
long incarceration in jail, he is entitled to
be released on bail, as due to delay in
trial, his fundamental right of speedy trial
envisaged under article 21 of the
constitution is being violated.
10. The bail application has beenopposed by AGA contending that specific
role of setting the deceased on fire has
been attributed to the applicant and hence
in this heinous crime, he should not be
released on bail.
11. On the point of granting bail on
this ground of parity, it is submitted by
learned AGA that parity can not be the
sole ground for bail.
12. I have carefully gone through theentire material on record. There is
sufficient prima facie evidence to show
that the applicant Sanjay had set the
deceased on fire after pouring kerosene
oil by his father. The post-mortem report
(annexure 2) shows that the deceased had
died due to burn injuries. Therefore
having regard to overall facts and
circumstances of the case and keeping in
view the evidence available in the case
diary, but without expressing any opinion
about merit of the case, in this heinouscrime of taking the life of an innocent
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lady without any lawful excuse, the
applicant does not deserve bail.
13. I entirely agree with the
contention of learned AGA that parity
cannot be the sole ground for bail.
Reliance can be placed on Shahnawaz @
Shanu Vs. State of U.P. 2009 (66) ACC189.
14. In my considered opinion, on the
basis of long incarceration in jail also, the
applicant cannot be released on bail. In
this context, reference may be made to the
case ofPramod Kumar Saxena vs. Union
of India and others 2008(68) ACC 115,
in which the Hon'ble Apex Court has held
that mere long period of incarceration in
jail would not be per-se illegal. If the
accused has committed offence, he has toremain behind bars. Such detention in jail
even as an under trial prisoner would not
be violative of Article 21 of the
Constitution.
15. Consequently, the bail
application is hereby rejected.
16. The trial court concerned is
directed to conclude the trial of the
applicant and other accused within a
period of six months making sincereefforts and applying the provisions of
section 309 Cr.P.C.
17. S.S.P. Ghaziabad is also directed
to depute special messenger to procure the
attendance of the witnesses after
obtaining their summons from the court
concerned and it must be ensured that all
the witnesses are produced in the session
trial arising out of aforesaid case without
causing any delay.
18. The office is directed to send a
copy of this order within a week to the
trial court concerned and S.S.P.
Ghaziabad for necessary action.---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.09.2009
BEFORE
THE HONBLE C.K. PRASAD,C. J.
THE HONBLE R.K. AGRAWAL, J.
THE HONBLE PRAKASH KRISHNA, J.
Income Tax Appeal No. 78 of 2002
Commissioner of Income Tax-I, Kanpur Appellant
VersusShri Mohd. Farooq Respondent
Counsel for the Appellant:Sri Shambhu ChopraSri Ashok KumarSri Ashok TrivediSri Ashok TrivediSri Krishna AgrawalSri R.P. KapoorSri R.P. AgrawalSri V.K. Dwivedi
Counsel for the Respondent:
Sri V.B. Upadhyay
Sri Hanuman Upadhyay
Income Tax Act-1961-Section 260 A(2)-Tax Appeal-Beyond 120 days-question asto whether the provisions of limitationcontained in section 4 to 24 as providedunder Section 29(2) of limitation Act1963 are applicable of considering theprinciple of natural justice can beentertained and decided on merit-held-ithas to be presented in accordance withprocedure and within the timeprescribed by statute-principle of natural
justice not alienated-appeal beyond that
liable to be dismissed as barred bylimitation.
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Held: Para-29
We are of the opinion that appeal has tobe presented according to the procedureprescribed. The remedy of appeal is astatutory right and hence it has to bepresented in accordance with theprocedure, the manner and within the
time prescribed by the Statute, and theprinciples of natural justice are notremotely attracted so far as the questionof limitation is concerned.Case Law discussed:
AIR 1995 SC 2272, AIR 1966 All. 161(2007),289 ITR 382 (Bom), (1974) 2 SCC 133, AIR1975 SC 1039, (2009) 5 SCC 791, AIR 1979Delhi 26.
(Delivered by Honble C.K. Prasad, C.J.)
1. As identical question of law is
involved in all these appeals, they have
been heard together and are being
disposed off by this common judgment.
2. All these appeals have been
preferred under Section 260A (2) of the
Income Tax Act, 1961 (hereinafter
referred to as the ''Act 1961') by the
Revenue as well as by the Assessee. It
provides for filing of an appeal in the
form of a memorandum of appeal within
120 days from the date on which the order
appealed against is received by the
Assessee or the Chief Commissioner or
the Commissioner. It is an admitted
position that all these appeals have been
preferred beyond the period of limitation
as provided under the aforesaid Section
and the appellants have filed applications
for extension of prescribed period of
limitation and for admission of appeals
after condoning the delay. When said
applications for condonation of delay
were placed for consideration before a
Division Bench of this Court, the Division
Bench by order dated 20.08.2007 referred
the following question for determination
by a larger Bench:-
"As to whether the period of
limitation prescribed for filing an appeal
under Section 260-A (2) of the Income
Tax Act, 1961 is subject to the provisions
contained in Sections 4 to 24 of theLimitation Act, 1963 as provided under
Section 29 (2) of the Limitation Act,
1963?"
3. Hon'ble the Chief Justice on
reference so made, directed the matter to
be heard by three Judges' Bench and that
is how, these appeals have come up
before us for determination of the
aforesaid question.
4. The question so formulatednecessitates examination of the provisions
of the Limitation Act, 1963 (hereinafter
referred to as the ''Act 1963') as also the
Act 1961. Section 29 of the Act 1963,
which is relevant for the purpose, reads as
follows:-
"29. Savings.- (1) Nothing in this Act shall
affect Section 25 of the Indian Contract,
1872 (9 of 1872).
(2) Where any special or local lawprescribes for any suit, appeal or
application a period of limitation different
from the period prescribed by the
Schedule, the provisions of Section 3 shallapply as if such period were the period
prescribed by the Schedule and for the
purpose of determining any period of
limitation prescribed for any suit, appeal
or application by any special or local law,the provisions contained in Sections 4 to
24 (inclusive) shall apply only in so far
as, and to the extent to which, they are not
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3 All] Commissioner of Income Tax-I, Kanpur V. Shri Mohd. Farooq 741
expressly excluded by such special or
local law.
(3) Save as otherwise provided in any law
for the time being in force with respect to
marriage and divorce, nothing in this Act
shall apply to any suit or other
proceeding under any such law.
(4) Sections 25 and 26 and the definition
of "easement" in Section 2 shall not apply
to cases arising in the territories to which
the Indian Easements Act, 1882 (5 of
1882), may for the time being extend."
5. From a plain reading of Section
29 (2) of the Act 1963, it is evident that
where in any special or local law, a period
of limitation different from the period
prescribed by its Schedule is provided, theprovisions of Section 3 of the Act 1963
shall apply as if such period was the
period prescribed by the Schedule to the
Act 1963. It also provides that for the
purpose of determining any period of
limitation prescribed, the provisions
contained in Sections 4 to 24 of the Act
1963 shall apply only insofar as and to the
extent they are not expressly excluded by
such special or local law.
6. In view of aforesaid, the questionwhich, at the first instance, falls for
consideration is as to whether an appeal
preferred under Section 260A (2) of the
Act 1961 comes within the ambit of
Section 29 (2) of the Act 1963 so as to
include the application of Sections 4 to 24
of the Act 1963. To come within the
ambit of Section 29 (2) of the Act 1963,
three main ingredients are required to be
satisfied, namely:-
(1) The special or local law must
provide for a period of limitation for any
suit or appeal.
(2) The said period of limitation
must be different from the period
prescribed by the Schedule to the Act
1963.
(3) The application of Sections 3
and 4 to 24 of the Act 1963 has not been
expressly excluded by the special law.
7. It is common ground that the Act
1961 has provided for a period of
limitation for filing an appeal and the said
period of limitation is different from the
period prescribed by the Schedule to the
Act 1963. It is relevant here to state that
Section 260A of the Act 1961 prescribes
limitation of 120 days whereas Article116 of the Schedule appended to the Act
1963 provides limitation of 90 days for
filing appeal to the High Court.
8. In view of the above,
unhesitatingly, the first two requirements
are satisfied.
9. It is contended on behalf of the
appellants that once conditions nos. 1 and
2, referred to above, have been satisfied,
Section 29 (2) of the Act 1963 wouldapply. Reliance has been placed on a
decision of the Supreme Court in the case
of Mukri Gopalan Vs. Cheppilat
Puthanpurayil Aboobacker, AIR 1995 SC
2272, in which it has been held as
follows:-
"22. As a result of the aforesaid
discussion it must be held that appellateauthority constituted under Section 18 of
the Kerala Rent Act, 1965 functions as
court and the period of limitationprescribed therein under Section 18
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governing appeals by aggrieved parties
will be computed keeping in view the
provisions of Sections 4 to 24 of theLimitation Act, 1963 such proceedings
will attract Section 29 (2) of the
Limitation Act and consequently Section 5
of the Limitation Act would also be
applicable to such proceedings. AppellateAuthority will have ample jurisdiction to
consider the question whether delay in
filing such appeals could be condoned on
sufficient cause being made out by the
concerned applicant for the delay in filing
such appeals. ... "
10. We do not find any substance in
the aforesaid submission of the counsel
for the appellants and we are of the
opinion that the special law providing for
a period of limitation and that beingdifferent from the period prescribed by
the Schedule to the Act 1963 itself, would
not attract the provisions of Section 29 (2)
of the Act 1963. The judgment of the
Supreme Court in the case of Mukri
Gopalan (supra), relied on by the
appellants, in no way, suggests that if
there is period of limitation under any
special or local law and that prescription
of period of limitation under such special
law is different from the period prescribed
by the Schedule to the Act 1963, Section29 (2) of the Act 1963 on its own force
will get attracted. It has further been held
in the said case that one has to see that
there is no express exclusion taking out
the applicability of Section 5 of the Act
1963. In fact, this would be evident from
the following passage of paragraph 11 of
the judgment:-
"11. It is also obvious that once the
aforesaid two conditions are satisfied S.
29 (2) on its own force will get attractedto appeals filed before appellate authority
under S. 18 of the Rent Act. When Section
29 (2) applies to appeals u/S. 18 of the
Rent Act, for computing the period oflimitation prescribed for appeals under
that Section, all the provisions of Ss. 4 to
24 of the Limitation Act would apply.
Section 5 being one of them would
therefore get attracted. It is also obviousthat there is no express exclusion
anywhere in the Rent Act taking out the
applicability of S. 5 of the Limitation Act
to appeals filed before appellate authority
under S. 18 of the Act. Consequently, all
the legal requirements for applicability of
S. 5 of the Limitation Act to such appeals
in the light of S. 29 (2) of Limitation Act
can be said to have been satisfied. ..."
(Underlining ours)
11. Submission of the counsel forthe appellants is that neither Section 260A
of the Act 1961 nor any other provision
thereof expressly excludes the
applicability of Sections 4 to 24 of the Act
1963 and, therefore, Section 29 of the Act
1963 will apply and once it is held so,
Section 5 of the Act 1963 would be
available for extending the time for filing
appeals and condoning the delay in filing
appeals under Section 260A of the Act
1961. It is further contended that when the
legislature has used the expression"expressly excluded", one has to bank
upon the provisions of the Act 1961 to
come to that conclusion and the said
conclusion cannot be arrived at by process
of a detailed reasoning. Reference in this
connection has been made to a decision of
this Court in the case of Harbir Singh Vs.
Ali Hasan & Ors., AIR 1966 All. 161, and
our attention has been drawn to the
following paragraph of the judgment:-
(9) The expression "expressly excluded"is clear enough. It signifies exclusion by
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3 All] Commissioner of Income Tax-I, Kanpur V. Shri Mohd. Farooq 743
words. It will not mean exclusion by a
process of construction or reasoning. In
Vidyacharan's case, AIR 1964 SC 1099,Subba Rao, J. observed in paragraph 27
that S. 29 speaks of express exclusion and
that though S. 116-A of the
Representation of the People Act 1951
provides a period of limitation for anappeal and also the circumstance under
which the delay can be excused, yet it
does not amount to an express exclusion
within the meaning of S. 29 of the
Limitation Act."
12. Reliance has also been placed on
a Full Bench decision of the Bombay
High Court in the case of Commissioner
of Income-Tax Vs. Velingkar Brothers,
(2007) 289 ITR 382 (Bom). In the said
case, on review of a large number ofauthorities, the Bombay High Court has
finally concluded as follows:-
"25. We shall finally conclude thus:
Section 5 of the Limitation Act shall apply
in case of the appeals filed under Section
260A of the Income-tax Act, 1961."
13. While coming to the aforesaid
conclusion, the Full Bench has observed
as follows:-
"21. Thus, there is an overwhelming
line of cases holding Section 5 of the
Limitation Act applicable to the matters in
appeal and reference applications to theHigh Court under the Indian Income-tax
Act, the Customs Act and the Bombay
Sales Tax Act. Our conclusion in this
regard is in line with these cases."
14. Counsel for the respondents,
excepting those in which Revenue is the
respondent, however, contend that theexpression "expressly excluded" does not
mean that the provision providing for
appeal itself should say so and that can be
inferred from the scheme of the Act 1961
itself. Accordingly, it has been contended
that the scheme of the Act 1961 clearly
excludes application of Section 5 of the
Act 1963 and, therefore, an appeal
preferred under Section 260A of the Act1961 cannot be admitted by extending the
period of limitation.
15. In our opinion, for express
exclusion of Sections 4 to 24 of the Act
1963, the special law need not provide for
its exclusion in the provision providing
for appeal itself and the express exclusion
can be inferred from the scheme of the
Act. We are further of the opinion that in
a case where the special law does not
exclude the provisions of Sections 4 to 24of the Act 1963 by an express provision,
it would, nonetheless, be open to the
Court to examine whether and to what
extent the nature of those provisions or
the nature of the subject matter and the
scheme of the special law excludes their
operation. One can come to the
conclusion that when a special law does
not provide for application of Section 5 of
the Act 1963, it is expressly excluded. A
reference in this connection can be made
to a decision of the Supreme Court in thecase of Hukumdev Narain Yadav Vs.
Lalit Narain Mishra, (1974) 2 SCC 133,
in which it has been held as follows:-
"... Even assuming that where a
period of limitation has not been fixed for
election petitions in the Schedule to the
Limitation Act which is different from that
fixed under Section 81 of the Act, Section29 (2) would be attracted, and what we
have to determine is whether the
provisions of this Section are expresslyexcluded in the case of an election
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744 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
petition. It is contended before us that the
words "expressly excluded" would mean
that there must be an express referencemade in the special or local law to the
specific provisions of the Limitation Act of
which the operation is to be excluded. As
usual the meaning given in the Dictionary
has been relied upon, but what we have tosee is whether the scheme of the special
law, that is in this case the Act, and the
nature of the remedy provided therein are
such that the Legislature intended it to be
a complete code by itself which alone
should govern the several matters
provided by it. If on an examination of the
relevant provisions it is clear that the
provisions of the Limitation Act are
necessarily excluded, then the benefits
conferred therein cannot be called in aid
to supplement the provisions of the Act. Inour view, even in a case where the special
law does not exclude the provisions of
Sections 4 to 24 of the Limitation Act by
an express reference, it would nonetheless
be open to the Court to examine whether
and to what extent the nature of those
provisions or the nature of the subject-
matter and scheme of the special law
exclude their operation. The provisions of
Section 3 of the Limitation Act that a suit
instituted, appeal preferred and
application made after the prescribedperiod shall be dismissed are provided for
in Section 86 of the Act which gives a
peremptory command that the High Court
shall dismiss an election petition whichdoes not comply with the provisions of
Sections 81, 82 or 117. It will be seen that
Section 81 is not the only Section
mentioned in Section 86, and if the
Limitation Act were to apply to anelection petitioner under Section 81 it
should equally apply to Sections 82 and
117 because under Section 86 the HighCourt cannot say that by an application of
Section 5 of the Limitation Act, Section 81
is complied with while no such benefit is
available in dismissing an application fornon-compliance with the provisions of
Sections 82 and 117 of the Act, or
alternatively if the provisions of the
Limitation Act do not apply to Section 82
and Section 117 of the Act, it cannot besaid that they apply to Section 81. Again
Section 6 of the Limitation Act which
provides for the extension of the period of
limitation till after the disability in the
case of a person who is either a minor or
insane or an idiot is inapplicable to an
election petition. Similarly, Sections 7 to
24 are in terms inapplicable to the
proceedings under the Act, particularly in
respect of the filing of election petitions
and their trial."
16. Yet another decision of the
Supreme Court in the case of The
Commissioner of Sales Tax, Uttar
Pradesh, Lucknow Vs. M/s. Parson Tools
and Plants, Kanpur, AIR 1975 SC 1039,
lends support to aforesaid view, which
would be evident from paragraphs 12 and
13 of the judgment, which read as
follows:-
"12. If the legislature willfully omits
to incorporate something of an analogouslaw in a subsequent statute, or even if
there is a casus omissus in a statute, the
language of which is otherwise plain and
unambiguous, the Court is not competentto supply the omission by engrafting on it
or introducing in it, under the guise of
interpretation by analogy or implication,
something what it thinks to be a general
principle of justice and equity. " To doso"--(at p. 65 in Prem Nath L. Ganesh v.
Prem Nath L. Ram Nath, AIR 1963 Punj.
62. per Tek Chand, J.) "would beentrenching upon the preserves of
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Legislature", the primary function of a
court of law being jus dicere and not jus
dare.13. In the light of what has been said
above, we are of the opinion that the High
Court was in error in importing whole
hog the principle of Section 14(2) of the
Limitation Act into Section 10 (3-B) of theSales-tax Act."
17. The Supreme Court had the
occasion to consider this question in the
case of L.S. Synthetics Ltd. Vs.
Fairgrowth Financial Services Ltd. &
Anr., (2004) 11 SCC 456, in which it has
been held as follows:-
"38. A Special Court having regard
to its nature and functions may be a court
within the meaning of Section 3 of theIndian Evidence Act, 1872 or Section 3 of
the Limitation Act, 1963 but having
regard to its scope and object and in
particular the fact that it is a complete
code in itself, in our opinion, the period of
limitation provided in the Schedule
appended to the Limitation Act, 1963, will
have no application. For the applicability
of Section 29 (2) of the Limitation Act, the
following requirements must be satisfied
by the court invoking the said provision:
(1) There must be a provision for period
of limitation under any special or local
law in connection with any suit, appeal or
application.
(2) Such prescription of the period of
limitation under such special or local law
should be different from the period of
limitation prescribed by the Schedule tothe Limitation Act, 1963."
18. In view of the authoritativepronouncement of the Supreme Court in
the case of Commissioner of Customs &
Central Excise Vs. M/s. Hongo India (P)
Ltd. & Anr., (2009) 5 SCC 791, this
question does not need further
elaboration. Paragraph 20 of the
judgment, which is relevant in this regard,
reads as follows:-
20.Though, an argument was raised
based on Section 29 of the Limitation Act,
even assuming that Section 29 (2) would
be attracted what we have to determine is
whether the provisions of this section are
expressly excluded in the case of
reference to High Court. It was contended
before us that the words "expressly
excluded" would mean that there must be
an express reference made in the special
or local law to the specific provisions of
the Limitation Act of which the operationis to be excluded. In this regard, we have
to see the scheme of the special law here
in this case is Central Excise Act. The
nature of the remedy provided therein are
such that the legislature intended it to be a
complete Code by itself which alone
should govern the several matters
provided by it. If, on an examination of
the relevant provisions, it is clear that the
provisions of the Limitation Act are
necessarily excluded, then the benefits
conferred therein cannot be called in aidto supplement the provisions of the Act.
In our considered view, that even in a
case where the special law does not
exclude the provisions of Sections 4 to 24
of the Limitation Act by an express
reference, it would nonetheless be open to
the court to examine whether and to what
extent, the nature of those provisions or
the nature of the subject-matter and
scheme of the special law exclude their
operation. In other words, the
applicability of the provisions of theLimitation Act, therefore, to be judged not
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from the terms of the Limitation Act but
by the provisions of the Central Excise
Act relating to filing of reference
application to the High Court. The
scheme of the Central Excise Act, 1944
support the conclusion that the time limit
prescribed under Section 35H (1) to make
a reference to High Court is absolute andunextendable by court under Section 5 of
the Limitation Act. It is well settled law
that it is the duty of the court to respect
the legislative intent and by giving liberal
interpretation, limitation cannot be
extended by invoking the provisions of
Section 5 of the Act."
19. Bearing in mind the principle
aforesaid, we proceed to consider the
scheme of the Act. It hardly needs any
discussion to hold that the Act 1961 is acomplete Code in itself. Chapter XX of
the Act 1961 deals with appeals and
revision. Section 249 of the Act 1961
provides for appeal to the Commissioner
and the limitation thereto, and sub-section
(3) thereof specifically provides that the
Commissioner (Appeals) may admit an
appeal after the expiration of the period of
limitation if he is satisfied that the
appellant had sufficient cause for not
presenting the appeal within time. Section
253 of the Act 1961 provides for appeal tothe Appellate Tribunal and the limitation
for filing the appeal, but again sub-section
(5) thereof confers power on the
Appellate Tribunal to admit an appeal
after expiry of the period of limitation.
The power of the Commissioner
(Appeals) and the Appellate Tribunal to
condone the delay is not hedged and they
can condone the delay of any period.
However, Section 256 of the Act 1961,
before its omission by the National Tax
Tribunal Act, 2005, though provided forthe Appellate Tribunal to make reference
to the High Court and the limitation for
filing such an application for reference
was 120 days, but the proviso thereof had
given power to entertain an application
within a further period not exceeding 30
days. The proviso to sub-section (3) of
Section 264 of the Act 1961 providing for
filing revision also contemplatesadmission of an application beyond the
period of limitation on showing sufficient
cause.
20. It is relevant here to state that
proviso to sub-section (1) of Section
269G of the Act, 1961 provides for
extension of period of limitation for filing
an appeal before the Appellate Tribunal
against an order of the competent
authority under Section 269F of the Act,
1961. Not only this, in relation to anappeal to the High Court against the order
of the Appellate Tribunal under Section
269G of the Act, 1961, jurisdiction has
been conferred to the High Court to admit
the appeal after the expiry of the period of
limitation on an application made before
the expiry of the period. In the
background aforesaid, when one
considers the provision of Section 260A
of the Act 1961 providing for appeal to
the High Court, it is evident that no such
power has been given to the Court.Absence of any provision in Section 260A
of the Act, 1961 conferring jurisdiction to
condone the delay in filing the appeal and
in view of the scheme of the Act, referred
to above, in our opinion, provisions of
Sections 4 to 24 of the Act, 1963 would
not be applicable in the case of an appeal
preferred under Section 260A of the Act,
1961.
21. Now referring to the decision of
this Court in the case of Harbir Singh(supra), same in no way supports the plea
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of the appellants. Various provisions of
the Act 1961, which we have referred to
above, signify exclusion of the Act 1963.
22. True it is that the Full Bench of
the Bombay High Court in the case of
Velingkar Brothers (supra) has held that
Section 5 of the Act 24 of 1963 shallapply in case of appeals filed under
Section 260A of the Act 1961, but in view
of the decision of the Supreme Court in
the case of Hongo India (Pvt.) Ltd.
(supra), it is difficult to follow its
reasoning. The decision of the Bombay
High Court is based on its earlier
decisions in the cases relating to Customs
Act and other Acts. However, the
Supreme Court in the case of Hongo India
(Pvt.) Ltd. (supra) considered the
provisions of the Central Excise Act vis--vis Section 29 (2) of the Act 1963 and
in face of enunciation of law in this case,
it is difficult to follow the reasoning and
conclusion of the Bombay High Court in
the aforesaid case relied on by the
appellants.
23. Accordingly, answer to the
question formulated is in the negative and
it is held that the period of limitation
prescribed for filing an appeal under
Section 260A (2) of the Act, 1961 is notsubject to the provisions contained in
Sections 4 to 24 of the Act, 1963, as
provided under Section 29 (2) of the Act,
1963.
24. Aforesaid answer, in our
opinion, would have concluded the
reference, but in deference to the plea
taken by the appellants that Order XLI
Rule 3-A of the Code of Civil Procedure
(hereinafter referred to as the ''Code'),
being applicable to an appeal underSection 260A of the Act, 1961, the delay
in filing the appeal can be condoned
under the aforesaid provision. It has been
pointed out that sub-section (7) of Section
260A of the Act, 1961 provides for
application of the provisions of the Code
in the case of an appeal preferred under
Section 260A of the Act, 1961. It has
further been pointed out that Order XLIRule 3-A of the Code, which has been
inserted by the Code of Civil Procedure
Amendment Act, 1976 (Act No.104 of
1976), provides for condonation of delay.
Accordingly, it has been submitted that
even if the provisions of the Act, 1963
may not be fit to be invoked, but delay
can be condoned by resorting to the
power under Order XLI Rule 3-A of the
Code. Reliance has been placed on a
Single Judge decision of the Delhi High
Court in the case of Miss. NirmalaChaudhary Vs. Bisheshar Lal, AIR 1979
Delhi 26, in which it has been held as
follows:-
"34. ...The newly added provision of
R. 3A of O. 41 in the Civil P.C. gives an
additional right to a litigant to claim
condonation at the time of presenting the
appeal...."
25. We do not have the slightest
hesitation in rejecting this submission.Order XLI Rule 3-A of the Code of Civil
Procedure reads as follows:
"3-A. Application for condonation ofdelay.--(1) When an appeal is presented
after the expiry of the period of limitation
specified therefor, it shall be
accompanied by an application supported
by affidavit setting forth the facts onwhich the appellant relies to satisfy the
Court that he had sufficient cause for not
preferring the appeal within such period.
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748 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
(2) If the Court sees no reason to reject
the application without the issue of a
notice to the respondent, notice thereofshall be issued to the respondent and the
matter shall be finally decided by the
Court before it proceeds to deal with the
appeal under Rule 11 or Rule 13, as the
case may be.(3) Where an application has been made
under sub-rule (1), the Court shall not
make an order for the stay of execution of
the decree against which the appeal is
proposed to be filed so long as the Court
does not, after hearing under Rule 11,
decide to hear the appeal."
26. Sub-rule (1) of Rule 3-A of
Order XLI of the Code provides for
procedure for presenting an appeal after
the expiry of period of limitation and itcontemplates filing of an application
supported by an affidavit setting forth the
facts to satisfy the Court about the
sufficient cause for not preferring the
appeal within time. Sub-rule (2) thereof
provides for notice to the respondent in
case such an application is not rejected at
the threshold and sub-rule (3) mandates
that an order for stay of execution of a
decree against which appeal is proposed
to be filed shall not be granted so long the
decision is not taken to hear the appeal.Therefore, in our opinion, Order XLI Rule
3-A of the Code is not an independent
provision conferring jurisdiction on the
Appellate Court to condone the delay, but
provides for the procedure to be followed
for filing and considering the application
for condonation of delay.
27. In our opinion, in view of the
language of Order XLI Rule 3-A of
C.P.C., it is difficult to hold that it gives
any additional right to claim condonationunder this provision. A Division Bench of
the Madras High Court had the occasion
to consider this question in the case of
Managing Director, Thanthal Periyar
Transport Corpn. Villupuram Vs. K.C.
Karthiyayini, AIR 1995 Mad. 102,
wherein it has been held as follows:-
"7. Counsel for one of the petitionersalso contends that Order 41, Rule 3-A (1)
gives a further right to claim condonation
of the delay, in addition to such right
under Section 5 of the Limitation Act and
that O. 41, Rule 3-A will have application
only if the said Section 5 is invoked.
According to him these petitions to
condone delay are filed under Section 173
of the Motor Vehicles Act and not under
Section 5 of the Limitation Act. In this
connection, he relied on Nirmala
Chaudhary Vs. Bisheshar Lal (AIR 1979Delhi 26) and State of Assam V. Gobinda
Chandra Paul (AIR 1991 Gauhati 104).
The observation in AIR 1979 Delhi 26 is
no doubt as follows (at p. 31):-
"The newly added provision of R.3
of O.41 in the Civil P.C. gives an
additional right to a litigant to claim
condonation at the time of presenting the
appeal."
In State of Assam V. Gobinda ChandraPaul (AIR 1991 Gauhati 104) also similar
view appears to have been expressed in
the following words (at p.110):-
"Besides, this rule is not in
derogation of S.5 of the Limitation Act, in
fact, it is in addition to that".
But, we are unable to subscribe tothis view, since O.41, R.3-A, C.P.C. has
only been inserted by the Amending Act,
1976 in order to prescribe the procedurefor securing the final determination of the
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question as to limitation even at the stage
of admission of the appeal. The rule does
not prescribe the period of limitation foran appeal. The period of limitation is
provided only under Art. 116 of the
Limitation Act, 1963 in respect of appeals
and it cannot be said that O.41, Rule 3-A
gives any additional right to litigants toclaim condonation. Moreover,
condonation of delay is not a matter of
right. The litigant who comes to court
after the prescribed period of limitation is
bound to satisfy the Court that he has
sufficient cause for the delay."
28. We respectfully agree with the
aforesaid observation.
To put the record straight, it is relevant
here to state that it has also beencontended on behalf of the appellants that
principles of natural justice demand that
in case of the appellants showing
sufficient cause, the appeal deserves to be
heard, though presented beyond the
period of limitation.
29. We are of the opinion that
appeal has to be presented according to
the procedure prescribed. The remedy of
appeal is a statutory right and hence it has
to be presented in accordance with theprocedure, the manner and within the time
prescribed by the Statute, and the
principles of natural justice are not
remotely attracted so far as the question
of limitation is concerned.
30. Having held that the delay in
filing the appeals cannot be condoned, we
have no option than to dismiss all the
appeals as barred by limitation and they
are dismissed accordingly.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.09.2009
BEFORE
THE HONBLE A.P. SAHI, J.
Civil Misc. Writ Petition No. 1104 of 2008
Jagdev PetitionerVersus
Commissioner, Gorakhpur Division andothers Respondents
Counsel for the Petitioner:Sri Sri R.C.Singh
Counsel for the Respondents:Sri V.K. SinghSri R.N. BhaktaS.C.
U.P. Z.A. & L.R Act-Section 122-C-Allotment of land under section 115-Q-respondent failed to make any efforteither to get possession or raiseconstruction within statutory period of 3
years-admittedly the petitioner neverdisturbed the possession inspite ofknowledge of proceeding since 99-Dakhalnama executed in the year 2003-direction for registration F.I.R againstpetitioner-not sustainable-quashed -withdirection to proceed further keeping inview of observation after affordingopportunity of hearing to both parties.
Held: Para-7
It is evident that Rule 115-Q prescribes aclear time limit for raising constructionsafter allotment for the purpose of whichit was allotted. In the instant case theadmitted position is that the land wasallotted in 1994 and no efforts appear tohave been made either for takingpossession or for raising constructionswithin three years of the date ofallotment. There is also no evidence toindicate that it was the petitioner whoprevented the taking of such possession
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750 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
or that the respondents in any way wereresponsible for not allowing therespondents to raise constructions. As amatter of fact the Additional DistrictMagistrate has not adverted at all todetermine as to what were the factorsexisting that led to this situation ofDakhalnama being executed in the year
2003. Further the finding that thepetitioner approached the authoritiesafter a lapse of time is not supported byany cogent reason. If the petitioner wasaware of the proceedings of 1994, hispossession and alleged occupation hadnot been disturbed till 2003 when theDakhalnama was issued and whensubsequently the first information reportwas lodged. In view of the aforesaid thefindings recorded by the AdditionalDistrict Magistrate that the petitionerwas guilty of lapses is unsubstantiatedfrom the pleadings and the evidence on
records. Accordingly, the order of theAdditional District Magistrate isunsustainable.
(Delivered by Honble A.P. Sahi, J.)
1. Heard Sri R.C. Singh learned
counsel for the petitioner and Sri R.N.
Bhakta for the respondent nos. 5 and 6
and the learned standing counsel for the
respondent nos. 1 and 2.
2. A counter affidavit has been filed
on behalf of the contesting respondents asalso on behalf of the Gaon Sabha.
However, no counsel is present for the
Gaon Sabha when the matter is taken up
by this Court.
3. The challenge in the present
petition is to the order passed by the
Additional District Magistrate (Finance
and Revenue) dated 6.12.2007 whereby
the authority has refused to take action on
the proceedings initiated by the petitioner
under Section 122-C of the U.P.Z.A. &L.R. Act. The application was moved
under Clause 6 of Section 122-C praying
that the allotment be cancelled keeping in
view the provisions of Section 115-Q of
the rules framed under the aforesaid Act.
The same is quoted below:-
"115-Q. The person to whom the
housing site is allotted shall be required to
build a house and begin to reside in it orto use it for the purpose for which it was
built within three years from the date of
allotment: If he fails to do so or uses it at
any time for a purpose other than that for
which it was allotted his rights shall be
extinguished and the site may be taken
over by the Land Management
Committee:
Provided that in the case of a person
belonging to Scheduled Caste or
Scheduled Tribe the aforesaid time limit
for building of the house shall not apply."
4. The ground taken is that the
allotment was made in favour of the
contesting respondent in 1994. The fact
that possession was not handed over to
the contesting respondents is also
admitted in the counter affidavit where a
copy of Dakhalnama had been filed which
is dated 3.4.2003. A first information
report was lodged that the petitioner failed
to deliver the possession and in the first
information report it is admitted that thepossession was sought to be given on
3.4.2003. It was submitted by Sri R.C.
Singh learned counsel for the petitioner
that in view of the aforesaid admitted
position the contesting respondents could
not be permitted to raise constructions
after a lapse of nine years in view of the
bar as contained in Rule 115-Q. It is not
disputed that the contesting respondents
are not scheduled caste and, therefore, the
bar of three years would operate against
them.
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5. Learned standing counsel contends
that these proceedings were initiated by the
petitioner after a lapse of nine years and
the same could not have been done in view
of the fact that it was heavily barred by
time and latches as well and that the
petitioner cannot claim any semblance of
title over the land in question.
6. In rejoinder learned counsel for
the petitioner contends that that the
petitioner has claimed allotment and
possession keeping in view sub section 3
of Section 122-C of the U.P.Z.A. & L.R.
Act and, therefore, the contention
advanced on behalf of the respondents
deserves to be rejected. He further
submits that the cause arose when the
Dakhalnama was executed and as a matter
of fact respondents taking aid of theadministrative machinery started
disturbing the petitioner. He further
submits that the petitioner had filed a
revision even though ill advised inasmuch
no revision would lie against the order
under Section 122-C(6). He , therefore
submits that the time which has been
consumed in the aforesaid proceedings
clearly explains the delay in approaching
the Court.
7. It is evident that Rule 115-Qprescribes a clear time limit for raising
constructions after allotment for the
purpose of which it was allotted. In the
instant case the admitted position is that
the land was allotted in 1994 and no
efforts appear to have been made either
for taking possession or for raising
constructions within three years of the
date of allotment. There is also no
evidence to indicate that it was the
petitioner who prevented the taking of
such possession or that the respondents inany way were responsible for not
allowing the respondents to raise
constructions. As a matter of fact the
Additional District Magistrate has not
adverted at all to determine as to what
were the factors existing that led to this
situation of Dakhalnama being executed
in the year 2003. Further the finding that
the petitioner approached the authoritiesafter a lapse of time is not supported by
any cogent reason. If the petitioner was
aware of the proceedings of 1994, his
possession and alleged occupation had not
been disturbed till 2003 when the
Dakhalnama was issued and when
subsequently the first information report
was lodged. In view of the aforesaid the
findings recorded by the Additional
District Magistrate that the petitioner was
guilty of lapses is unsubstantiated from
the pleadings and the evidence on records.Accordingly, the order of the Additional
District Magistrate is unsustainable.
8. The contention of the learned
standing counsel that the petitioner had
preferred a revision against the said order
also cannot be entertained in view of the
order having been passed under Section
122-C which is final and not revisable.
9. For the conclusions drawn herein
above the impugned order dated 6.12.07and 13.12.07 are quashed. The matter is
remanded back to the respondent no.2 to
decide the matter in view of the
observations made herein above after
giving an opportunity of hearing to the
concerned parties preferably within a
period of three months from the date of
production of a certified copy of this order.
10. The writ petition is allowed. No
order as to costs.
---------
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752 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2009
BEFORE
THE HONBLE A. P.SAHI, J.
Civil Misc. Writ Petition No.33589 of 2007
Dhanai PetitionerVersus
State of U.P. and others Respondents
Counsel for the Petitioner:Sri Ramendra AsthanaSri Atul Srivastava
Counsel for the Respondents:Sri P.N. Rai,Sri Jai Prakash SinghS.C.
U.P.Panchayat Raj Act, 1947-Section 5-A(a)- readwith Representation of PeopleAct 1551-Section 8(3)- Disqualification-respondent -7 elected as villagePradhan-admittedly convicted undersection 302-defence taken about bail inappeal and stay of conviction in pendingcriminal appeal-not available-writ of'quo warrante' issued declaring theelection of respondent 7 as illegal -whoshall not be construed to hold publicoffice of village Pradhan.
Held: Para-13 & 20
It has been held that mere filing of anappeal would not take away thedisqualification incurred by thepetitioner by virtue of his conviction. Theaforesaid decision has taken notice ofthe decision in the case of K.Prabhakaran Vs. P. Jayarajan, in which ithas been held that once the convictionhas been pronounced and the sentenceawarded, then the disqualification isattached in view of the provisions, whichare presently in consideration. Section 5-
A of the Act 1947 clearly entails that aperson shall be disqualified for being
chosen in the event he is convicted. Inthe instant case, it is an admittedposition that the conviction has beenpronounced and sentence awarded.
In view of the aforesaid conclusiondrawn and in view of the fact that therespondent no. 7 admittedly suffers from
an inherent disqualification as providedunder Section 5-A, a declaration ishereby issued that the election of therespondent no. 7 as Gram Pradhan wasillegal and invalid and he shall not beconstrued to hold the public office ofGram Pradhan of Gram PanchayatMuriari, District Ghazipur forthwith as itstands accordingly annulled. Theimpugned order dated 30.03.2007 is alsoquashed.Case law discussed:1964 ALJ 1118, 2003 (2) AWC 1385, 2005(99) RD 746, 2001 (7) SCC 231, AIR 1999 SC
1723.
(Delivered by Honble A.P. Sahi, J.)
1. Heard Shri Atul Srivastava,learned counsel for the petitioner and Shri
Jai Prakash Singh, learned counsel for the
respondent no. 7 and Shri C.P. Mishra,
learned standing counsel appearing on
behalf of the respondent nos. 1 to 6.
2. In spite of repeated time having
been granted by the Court no counteraffidavit was filed, as a result whereof,
the Court had to summon the concerned
officials. Today a short counter affidavit
supported with an application has beenfiled by Shri Arvind Kumar Singh,
District Panchayat Raj Officer, Ghazipur
stating therein that unqualified apology is
being tendered for the delay caused in
providing assistance to the Court and
another short counter affidavit has been
filed by Shri Jitendra Mohan Singh, Sub-
Divisional Magistrate, Jakhaniya,Ghazipur stating therein that pursuant to
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the interim order of this Court, the District
magistrate passed an order restraining the
respondent no. 7 from functioning as
Gram Pradhan. Keeping in view the
allegations as contained in the writ
petition, the functions of the Gram
Pradhan are being carried out by a person
appointed and deputed vide order dated17.12.2007.
3. This writ petition has been filed
on the ground that the respondent no. 7-
Shyam Narain has been convicted in a
criminal case under Section 302 I.P.C.
and has been awarded a punishment of
life imprisonment, and as such in view of
the provisions of Section 5-A(a) of the
Uttar Pradesh Panchayat Raj Act, 1947
(hereinafter referred to as 'the Act'), the
respondent no. 7 could have neithercontested the election of the Gram
Pradhan nor could have been elected and
therefore a writ of quo warranto should be
issued to prevent the respondent no. 7 to
function as such as he is totally
disqualified to hold any such public
office. A further prayer has been made to
quash the order dated 30.03.2007 passed
by the Tehsildar rejecting the petitioner's
representation.
4. Notices were issued and a counteraffidavit has been filed on behalf of the
respondent no. 7 as well.
5. The fact that the respondent no. 7
has been convicted in a criminal case has
not been disputed. It has further been
stated that the respondent no. 7 did not
conceal this fact at the time when the
nomination was filed. The further
contention of the learned counsel for the
respondent is that the removal of the
answering respondent can be broughtabout only by an appropriate election
petition or under a procedure prescribed
in any law for the time being in force for
such purpose. It has further been
submitted that a criminal appeal filed
against the said conviction is still pending
before this Court and, therefore, the said
conviction should not be taken to be a
disqualification.
6. Learned standing counsel, on the
other hand, submitted that it appears that
it was on account of an erroneous
calculation of the period of 5 years as
provided for under Rule 3 of the Uttar
Pradesh Panchayat Raj Rules, 1994. He
contends that so far as the question of
continuance or otherwise of the
respondent no. 7 is concerned, the same
has to be construed in accordance with the
provisions of the Act and Rules and theauthorities are equally bound by it. He
contends that so far as the election of the
respondent no. 7 has not been set aside
under any election petition or any other
proceeding provided for in law. He
submits that the records have already been
filed along with the writ petition and there
is nothing which is required to be added
on facts. He contends that the criminal
appeal, which is pending before this
Court, would finally decide the fate of the
respondent no. 7.
7. The petitioner had earlier come up
before this Court for a quo warranto in
Writ Petition No. 62339 of 2006 alleging
the aforesaid disqualification. The petition
was disposed of on 16.11.2006 with a
direction to approach the Presiding
Officer who was to take a decision in the
matter. The impugned order dated
30.03.2007 was passed holding that no
authority could be shown to the effect that
a person convicted under Section 302I.P.C. would stand disqualified under
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Section 5A (g) of the Act. The contention
of the petitioner is that the disqualification
is under Section 5A (a) of the Act and
therefore the impugned order proceeds
erroneously.
8. Having heard learned counsel for
the parties and having perused the factson record, it is evident that the impugned
order overlooks the provisions of Section
5-A(a) of the Act. The disqualification of
a person to be elected as a member of the
legislative assembly is also provided for
as a disqualification for being chosen as
Pradhan. This would be clear upon a
combined reading of Section 5-A(a) of the
Act and Section 8 (3) of the
Representation of the People Act, 1951
quoted below:-
[5-A. Disqualification of
membership. - A person shall be
disqualified for being chosen as, and for
being, [the Pradhan or] a member of a
Gram Panchayat, if he- (a) is so
disqualified by or under any law for the
time being in force for the purposes of
elections of the State Legislature:
Provided that no person shall be
disqualified on the ground that he is less
than twenty-five years of age, if he hasattained the age of twenty-one years;
8(3). A person convicted of any
offence and sentenced to imprisonment
for not less than two years [other than any
offence referred to in sub-section (1) or
sub-section (2)] shall be disqualified from
the date of such conviction and shall
continue to be disqualified for a further
period of six years since his release.]
9. Apart from this, it is true that as
held by this Court in the case of HarsukhLal Vs. Sarnam Singh and others reported
in 1964 ALJ 1118, a sentence of life
imprisonment awarded upon a conviction
under Section 302 I.P.C., may not
necessarily involve moral turpitude if the
offence was a result of provocation as
distinct from a cold-blooded murder.
Reference may be had to the decision in
the case of Ran Vijay Chandra Vs. Stateof U.P. and others reported in 2003 (2)
AWC 1385.
10. A perusal of the said decision
therefore carves out exceptions where
moral turpitude can be inferred. The
respondent no. 7 was a teacher and
professed rivalry with the deceased. His
wife contested elections of Pradhan
against the wife of the respondent. The
murder was committed and from a perusal
of the judgment of the trial court, it isevident that it was a well planned murder,
not on provocation but by taking the
deceased by surprise. The respondent no.
7 is alleged to have exhorted and the other
accused fired with country made pistols.
The intention therefore is indicated, not
on provocation, but as a pre-planned
commission of an offence. In such
circumstances to say that the elements of
moral turpitude did not exist is a total
misconception of law.
11. Apart from this it is doubtful as
to whether the Tehsildar had any authority
to decide the matter. Thus on all three
scores as concluded hereinabove, the
order dated 30.03.2007 is unsustainable.
12. There is no doubt that the
respondent no. 7 is holding a public
office. He was elected as Gram Pradhan
in spite of the fact that he was convicted
in a criminal case and has been awarded a
sentence of life imprisonment. The issueas to whether such disqualification can be
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computed in the given circumstances of a
case such as presently involved has
already been considered by this Court in
the case of Amrendra Singh Vs. State of
U.P. and others reported in 2005 (99) RD
746. In paragraphs 12 and 13 of the said
judgment it has been held that since an
accused/convict had not undergone thesentence of imprisonment therefore the
computation of 5 years does not
commence until and unless he serves out
the sentence. The contention advanced on
behalf of the respondent no. 7 is that an
appeal has been filed. The aforesaid issue
has also been answered in the aforesaid
decision in paragraph 11, which is quoted
below:
"11. Thus the mere fact that an
appeal has been filed by the petitioneragainst his conviction which has been
admitted and he has been released on bail,
does not wipe out the disqualification
which has been attached on the strength
of conviction dated 13.06.1977. The
submission of the petitioner that the
conviction has not yet started since the
petitioner is on bail has also to be repelled
in view of the clear pronouncement of the
Apex Court as quoted above. The mere
fact that the petitioner has not yet served
his sentence he cannot be heard in sayingthat he is not disqualified."
13. It has been held that mere filing
of an appeal would not take away the
disqualification incurred by the petitioner
by virtue of his conviction. The aforesaid
decision has taken notice of the decision
in the case of K. Prabhakaran Vs. P.
Jayarajan, in which it has been held that
once the conviction has been pronounced
and the sentence awarded, then the
disqualification is attached in view of theprovisions, which are presently in
consideration. Section 5-A of the Act
1947 clearly entails that a person shall be
disqualified for being chosen in the event
he is convicted. In the instant case, it is an
admitted position that the conviction has
been pronounced and sentence awarded.
14. The said issue has beenanswered by the Apex Court in the case of
B.R. Kapur Vs. State of T. N. and
another reported in 2001 (7) SCC 231,
paragraphs 34 and 40 as follows:
"34. It is true that the order of the
High Court at Madras on the application
of the second respondent states: "Pending
criminal appeals the sentence of
imprisonment alone is suspended and the
petitioners shall be released on bail .....",
but this has to be read in the context ofSection 389 under which the power was
exercised. Under Section 389 an appellate
court may order that "the execution of the
sentence or order appealed against be
suspended ....:. It is not within the power
of the appellate court to suspend the
sentence; it can only suspend the
execution of the sentence pending the
disposal of appeal. The suspension of the
execution of the sentence does not alter or
affect the fact that the offender has been
convicted of a grave offence and hasattracted the sentence of imprisonment of
not less than two years. The suspension of
the execution of the sentences, therefore,
does not remove the disqualification
against the second respondent. The
suspension of the sentence, as the Madras
High Court erroneously called it, was in
fact only the suspension of the execution
of the sentences pending the disposal of
the appeals filed by the second
respondent. The fact that she secured the
suspension of the execution of thesentences against her did not alter or
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affect the convictions and the sentences
imposed on her and she remained
disqualified from seeking legislative
office under Section 8(3).
40. In much the same vein, it was
submitted that the presumption of
innocence continued until the finaljudgment affirming the conviction and
sentence was passed and, therefore, no
disqualification operated as of now
against the second respondent. Before we
advert to the four judgments relied upon
in support of this submission, let us clear
the air. When a lower court convicts an
accused and sentences him, the
presumption that the accused is innocent
comes to an end. The conviction operates
that the accused has to undergo the
sentence. The execution of the sentencecan be stayed by an appellate court and
the accused released on bail. In many
cases, the accused is released on bail so
that the appeal is not rendered
infructuous, at least in part, because the
accused has already undergone
imprisonment. If the appeal of the
accused succeeds the conviction is wiped
out as cleanly as if it had never existed
and the sentence is set aside. A successful
appeal means that the stigma of the
offence is altogether erased. But that isnot to say that the presumption of
innocence continues after the conviction
by the trial court. That conviction and the
sentence it carries operate against the
accused in all their rigour until set aside in
appeal, and a disqualification that attaches
to the conviction and sentence applies as
well."
15. The next issue, which has been
raised is as to whether a writ petition
under Article 226 of the Constitution ofIndia praying for prohibiting or recalling a
person who is holding a public office can
be a issue or not. The aforesaid issue
came up for consideration before the
Apex Court in the case of K.
Venkatachalam Vs. Swamichan and
another reported in AIR 1999 SC 1723.
In which the Supreme Court ruled as
follows:
"26. The question that arises for
consideration is if in such circumstances
High court cannot exercise its jurisdiction
under Article 226 of the Constitution
declaring that the appellant is not
qualified to be member of the Tamil Nadu
Legislative Assembly from Lalgudi
Assembly Constituency. On the finding
recorded by the High Court it is clear that
the appellant in his nomination from
impersonated a person known asVenkatachalam s/o Pethu, taking
advantage of the fact that such person
bears his first name. Appellant would be
even criminally liable as he filed his
nomination on affidavit impersonating
himself. If in such circumstances he is
allowed to continue to sit and vote in the
Assembly his action would be fraud to the
Constitution.
27. In view of the judgment of this
Court in the case of Election Commission
of India V. Saka Venkata Rao, AIR 1953SC 210, it may be that action under
Article 192 could not be taken as the
disqualification which the appellant
incurred was prior to his election. Various
decisions of this Court which have been
referred to by the appellant that
jurisdiction of the High Court under
Article 226 is barred challenging the
election of a returned candidate and which
we have noted above do not appear to
apply to the case of the appellant now
before us. Article 226 of the Constitutionis couched in widest possible term and
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unless there is clear bar to jurisdiction of
the High Court its powers under Article
226 of the Constitution can be exercised
when there is any act which is against any
provision of law or violative of
constitutional provisions and when
recourse cannot be had to the provisions
of the Act for the appropriate relief. Incircumstances like the present one bar of
Article 329(b) will not come into play
when cause falls under Articles 191 and
193 and whole of the election process is
over. Consider the case where the person
elected is not a citizen of India. Would the
Court allow a foreign citizen to sit and
vote in the Legislative Assembly and not
exercise jurisdiction under Article 226 of
the Constitution?
28. We are, therefore, of the view
that the High Court rightly exercised itsjurisdiction in entertaining the writ
petition under Article 226 of the
Constitution and declared that the
appellant was not entitled to sit in Tamil
Nadu Legislative Assembly with
consequent restraining order on him from
functioning as a member of the
Legislative Assembly. The net effect is
that the appellant ceases to be a member
of the Tamil Nadu Legislative Assembly.
Period of the Legislative Assembly is
long since over. Otherwise we wouldhave directed respondent no. 2, who is
Secretary to Tamil Nadu Legislative
Assembly, to intimate to Election
Commission that Lalgudi Assembly
Constituency seat has fallen vacant and
for the Election Commission to take
necessary steps to hold fresh election
from that Assembly Constituency.
Normally in a case like the Election
Commission should invariably be made a
party."
16. A perusal of the aforesaid
decision leaves no room for doubt that the
Article 226 of the Constitution of India
would be clearly maintainable even if
there was a provision for filing of an
election petition.
17. Such an issue also came beforethe Apex Court in B.R. Kapur's case
(supra) which involved the continuance of
the then Chief Minister of Tamil Nadu
Ms. J. Jayalalitha upon being convicted in
the case under the Prevention of
Corruption Act, 1988. A writ of quo
warranto was prayed for as she had been
sworn in as Chief Minister. The
contention was that she was ineligible for
being elected to the legislative assembly
having earned a conviction as such she
could not continue as Chief Minister. TheApex Court in para 45 of the said decision
ruled as under:
"45. Our conclusion, therefore, is
that on the date on which the second
respondent was sworn is as Chief Minister
she was disqualified, by reason of her
convictions under the Prevention of
Corruption Act and the sentences of
imprisonment of not less than two years,
for becoming a member of the Legislature
under Section 8(3) of the Representationof the People Act."
18. After having recorded the said
finding the Apex Court also ruled that in
such an event the Court is obliged to
intervene through a writ of quo warranto.
Reference be had to paras 51 to 55 quoted
below:
"51. If perchance, for whatever
reason, the Governor does appoint as
Chief Minister a person who is notqualified to be a member of the
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Legislature or who is disqualified to be
such, the appointment is contrary to the
provisions of Article 164 of the
Constitution, as we have interpreted it,
and the authority of the appointee to hold
the appointment can be challenged in quo
warranto proceedings. That the Governor
has made the appointment does not givethe appointee any higher right to hold the
appointment. If the appointment is
contrary to constitutional provisions it
will be struck down. The submission to
the contrary-unsupported by any
authority-must be rejected.
52. The judgment of this Court in
Kumar Padma Prasad v. Union of India is
a case in point. One K.N. Srivastava was
appointed a Judge of the Gauhati High
Court by a warrant of appointment signed
by the President of India. Before the oathof office could be administered to him,
quo warranto proceedings were taken
against him in that High Court. An
interim order was passed directing that the
warrant of appointment should not be
given effect to until further orders. A
transfer petition was then filed in this
Court and was allowed. This Court, on
examination of the record and the material
that it allowed to be placed before it, held
that Srivastava was not qualified to be
appointed a High Court Judge and hisappointment was quashed. This case goes
to show that even when the President, or
the Governor, has appointed a person to a
constitutional office, the qualification of
that person to hold that office can be
examined in quo warranto proceedings
and the appointment can be quashed.
53. It was submitted that we should
not enter a political thicket by answering
the question before us. The question
before us relates to the interpretation of
the Constitution. It is the duty of thisCourt to interpret the Constitution. It must
perform that duty regardless of the fact
that the answer to the question would
have a political effect. In State of
Rajasthan v. Union of India it was said by
Bhagwati, J.: (SCC pp. 660-61, para 149)
"But merely because a question has a
political complexion, that by itself is no
ground why the court should shrink fromperforming its duty under the Constitution
if it raises an issue of constitutional
determination. Every constitutional
question concerns the allocation and
exercise of governmental power and no
constitutional question can, therefore, fail
to be political ..... So long as a question
arises whether an authority under the
Constitution has acted within the limits of
its power or exceeded it, it can certainly
be decided by the court. Indeed it would
be its constitutional obligation to do so. Itis necessary to assert the clearest possible
terms, particularly in the context of recent
history, that the Constitution is suprema
lex, the paramount law of the land, and
there is no department or branch of
Government above or beyond it."
54. We are satisfied that in the
appointment of the second respondent as
the Chief Minister there has been a clear
infringement of a constitutional provision
and that a writ of quo warranto must
issue.55. We are not impressed by the
submissions that the writ petitions for quo
warranto filed in this Court are outside
our jurisdiction because no breach of
fundamental rights has been pleaded
therein; that the appeal against the
decision of the Madras High Court in the
writ petition for similar relief filed before
it was correctly rejected because the same
issue was pending here; and that the
transferred writ petition for similar relief
should, in the light of the dismissal of thewrit petitions filed in this Court, be sent
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back to the High Court for being heard.
Breach of Article 14 is averred in at least
the lead writ petition filed in this Court
[WP (C) No. 242 of 2001]. The writ
petition which was dismissed by the High
Court and against which order an appeal
is pending in this Court was filed under
Article 226, as was the transferred writpetition. This Court, therefore, has
jurisdiction to issue a writ of quo
warranto. We propose to pass the order in
the lead writ petition, and dispose of the
other writ petitions, the appeal and the
transferred writ petition in the light
thereof."
19. In the instant case, there being
no doubt about the admitted position of
disqualification having been incurred by
the respondent no. 7, there is no occasionfor this Court to dismiss the writ petition
on the ground of availability of any other
alternative remedy. Apart from this, it is
evident that the respondent no. 7 had been
restrained by this Court by an interim
order commanding the opposite parties
not to allow the said respondent to
function as Gram Pradhan. It is to be
noted that the order was passed by this
Court on 25th July, 2007 whereas the
District Magistrate took 5 months to pass
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